dsib-adad-may17item06

Page 1 of 5

California Department of Education
Executive Office
SBE-003 (REV. 09/2011)
dsib-adad-may17item06 / ITEM #05
/ CALIFORNIA STATE BOARD OF EDUCATION
MAY 2017 AGENDA
SUBJECT
California Assessment of Student Performance and Progress: Readoption of the Finding of Emergency and Proposed Emergency Regulations for Amendments to the California Code of Regulations, Title 5, Sections 851 through 856. / Action
Information
Public Hearing

SUMMARY OF THE ISSUE(S)

The California Department of Education (CDE) is responsible for the oversight of the California Assessment of Student Performance and Progress (CAASPP) System, which is governed by California Education Code (EC) sections 60640 through 60649. As required by EC Section 60640(q), California Code of Regulations, Title 5 (5 CCR), sections 850 through 868 were amended to conform the State’s testing regulations to the CAASPP System. Permanent CAASPP regulations were approved by the Office of Administrative Law (OAL) onAugust 27, 2014. The first operational administration of the CAASPP took place in spring 2015.

Following the first operational administration of the CAASPP, it became necessary to amend the regulations to reflect changes in CAASPP testing. Amendments to the CAASPP regulations were approved by the OAL on an emergency basis in fall 2015, and permanent amendments to the regulations were approved on May 18, 2016. Under the amended CAASPP regulations, the second operational administration of the CAASPP took place in spring 2016.

Emergency regulations to maintain the effective and valid implementation of the CAASPP System were adopted by the State Board of Education (SBE) at its meeting on January 11, 2017. The emergency regulations were approved by the OAL and deemed effective as of February 2, 2017. At its March 8, 2017 meeting, the SBE also approved additional amendments to the CAASPP permanent regulations for adoption through the regular rulemaking process.However, because the effective date of the permanent regulations is expected to occur at the end of August, while the emergency regulations will expire on August 2, 2017, the readoption of the emergency regulations is necessary to prevent a lapse between the expiration of the emergency regulations and the effective date of the permanent regulations.

RECOMMENDATION

The CDE recommends that the SBE take the following actions:

  • Approve the Finding of Emergency.
  • Readopt the proposed emergency regulations.
  • Direct the CDE to circulate the required Notice of Proposed Emergency Action, and then resubmit the emergency regulations to the OAL for readoption.
  • Authorize the CDE to take any necessary action to respond to any direction or concern expressed by the OAL during its review of the revised Finding of Emergency and readoption of the proposed emergency regulations.

BRIEF HISTORY OF KEY ISSUES

On October 2, 2013, Governor Brown signed Assembly Bill (AB) 484 (Chapter 489, Statutes of 2013), which amended EC sections 60601 through 60649, 99300, and 99301 and established the CAASPP System. The CAASPP System has replaced the Standardized Testing and Reporting Program, or STAR, and provides for the designation or development of statewide assessments and the administration of those assessments. The provisions of AB 484 took effect on January 1, 2014.

Pursuant to ECSection 60640(q), 5 CCR sections 850 through 868 were revised by the SBE to conform to the statutory changes made in AB 484. These amendments revised definitions, requirements, responsibilities, and guidelines for the administration, test security, reporting, and apportionment related to the CAASPP System. The amendments were approved initially as emergency regulations and later approved by the OAL as permanent regulations on August 27, 2014. Under these regulations, the first operational assessments took place on March 10, 2015 through July 31, 2015, and included the new computer-based assessments provided by the assessment consortium of which California is a member, Smarter Balanced Assessment Consortium (Consortium).

Subsequently, changes were again identified through a post-test evaluation conducted by the CAASPP testing contractor at the direction of the SBE and the CDE. The changes required amendments to be made to the regulations for the second operational administration, including the addition of accessibility supports in alignment with Consortium policy, the addition of a testing window for the new California Alternate Assessments (CAAs), clarifications to language needed for the new online tests (not necessary for the paper-pencil tests), and minor changes related to formatting and to provide additional clarification. These amendments were adopted by the OAL on an emergency basis to allow for the timely preparation and administration of the second operational administration of the CAASPP assessments for the 2015–16 school year;

they were also adopted through the regular rulemaking process and approved by the OAL on May 18, 2016. The CDE successfully oversaw the 2015–16 administration of the online CAASPP assessments January19,2016 through July 31, 2016.

As preparations for the third operational administration of the CAASPP assessments were already under way for the 2016–17 school year, a few changes to the regulations were approved by the OAL and deemed effective as of February 2, 2017.

Specifically, these amendments to the CAASPP regulations included the following:

  • Change in procedures for using enrolled grade level data from California Longitudinal Pupil Achievement Data System (CALPADS), for purposes of assessment
  • Addition of start and end dates of the CAASPP testing window
  • Clarification of the testing window for the CAA for English language arts (ELA) and mathematics
  • Addition of two new accessibility supports for the mathematics and ELA tests
  • Addition of EC Section 856 to require local educational agencies to inform the CDE if they plan to exceed the alternate assessment 1 percent cap, as required by the new federal Every Student Succeeds Act

SUMMARY OF PREVIOUS STATE BOARD OF EDUCATION DISCUSSION AND ACTION

At its March 2017 meeting, the SBE approved the proposed permanent amendments to the CAASPP regulations and directed that the proposed regulations be circulated to the public for a 45-day comment period. That period started on March 25, 2017 and ended on May 8, 2017, with a public hearing the same day. The permanent regulations will be back before the SBE for review and approval at the July 2017 SBE meeting. In the interim, the emergency regulations, effective as of February 2, 2017, are back before the SBE for readoption at the May 2017 SBE meeting (

At its January 2017 meeting, the SBE approved amendments to the CAASPP regulations on an emergency basis. The emergency regulations were approved by the OAL and deemed effective as of February 2, 2017, and are due to expire on August 2, 2017 (

At its May 2016 meeting, the SBE approved the revised Finding of Emergency and approved the readoption of the emergency CAASPP regulations so the CAASPP regulations would continue to be in place pending the OAL approval of the revised permanent regulations (

At the March 2016 SBE meeting, the SBE approved the changes to the proposed permanent regulations and directed that the amended regulations be circulated for a

15-day public comment period, March 10–25, 2016, and directed the CDE, assuming no relevant comments to the proposed changes were received, to deem the proposed permanent regulations adopted. No relevant comments were received and the revised permanent regulations were approved by the OAL on May 18, 2016 (

At its November 2015 meeting, the SBE adopted the proposed amendments to the CAASPP regulations as emergency regulations. The emergency regulations were approved by the OAL and became effective on November 23, 2015. The SBE also approved commencement of the regular rulemaking process for permanent amendments to the CAASPP regulations (

At its July 2014 meeting, the SBE readopted the emergency regulations for CAASPP. The emergency readoption rulemaking file was submitted to the OAL on July 16, 2014. The readoption of the emergency regulations was approved by the OAL on July 23, 2014. In addition to readopting the emergency regulations, the SBE adopted the permanent rulemaking file. The rulemaking file was submitted to the OAL on July16,2014, and permanent regulations for CAASPP were approved and became effective on August 27, 2014

(

(

At its January 2014 meeting, the SBE adopted proposed emergency regulations for CAASPP for the first time. The emergency regulations were approved by the OAL and became effective on February 3, 2014. The SBE also approved commencement of the regular rulemaking process for the permanent regulations (

(

FISCAL ANALYSIS (AS APPROPRIATE)

An Economic and Fiscal Impact Statement is attached.

ATTACHMENT(S)

Attachment 1: Finding of Emergency (2 pages)

Attachment 2: Emergency Regulations (8 pages)

Attachment 3: Notice of Proposed Emergency Action (2 pages)

Attachment 4: Economic and Fiscal Impact Statement (STD. 399) (5 pages)

10/4/2018 8:05 PM

dsib-adad-may17item06

Attachment 1

Page 1 of 2

FINDING OF EMERGENCY

READOPTION OF EMERGENCY REGULATIONS

California Assessment of Student Performance and Progress (CAASPP)

The State Board of Education (SBE) finds that an emergency continues to exist and that the emergency regulations adopted previously continue to be necessary to avoid serious harm to the public peace, health, safety, or general welfare, especially the welfare of pupils attending California’s public schools.

SPECIFIC FACTS DEMONSTRATING THE EXISTENCE OF AN EMERGENCY AND THE NEED FOR IMMEDIATE ACTION

Necessity for Readoption of Emergency Regulations

The proposed amendments to California Code of Regulations, Title 5, sections 851 to 856 must be readopted on an emergency basis in order to ensure that the 2016–17 administration, scoring and reporting of the California Assessment of Student Performance and Progress (CAASPP) tests continues in conformance with the requirements of Education CodeSection 60640. The purpose of the proposed amendments is to ensure the correct, efficient, and standardized administration of the CAASPP online assessments according to required consortium, state, and federal guidelines and to maintain accuracy, reliability, and validity of measures and timely reporting of the test results, in so doing, prevent harm to the public peace, health, safety, and general welfare of pupils. Allowing the emergency regulations to expire prior to the adoption of these amendments through the regular rulemaking process when not all of the testing, scoring and reporting of the CAASPP results has yet been completed, will jeopardize the reliability and validity of the results, causing further harm to the general welfare. All of the circumstances justifying the initial adoption of the emergency regulations remain unchanged and the emergency justifying the original adoption of the emergency regulations still exists. Therefore the Finding of Emergency that was submitted to and approved by the Office of Administrative Law (OAL) with the adoption of the CAASPP emergency regulations effective February 2, 2017 is incorporated by reference herein, as though fully set forth in this document.

Showing of Substantial Progress

The California Department of Education (CDE) brought the emergency regulations to the SBE for approval at its January 2017 meeting. Because the SBE meets only every other month, the next meeting the regular rulemaking package could be made available for approval by the SBE was the March 2017 meeting. Commencement for permanent regulations rulemaking was approved by the SBE at this meeting, which included all of the emergency regulations, and a comment period held between March 25 and May 8, 2017. However, the last day to post documents to the SBE Web site regarding SBE agenda items for the May meeting is April 28, 2017, pursuant to the Bagley-Keene Open Meeting Act (act). Since this date occurs during the public comment period, the CDE is unable to meet the provisions of the act. Hence, the CDE has no choice but to bring the regular rulemaking package back before the SBE at the July meeting for approval. Even if the permanent regulations are approved by the SBE at the July meeting, it will take at least a week before they can be submitted to the OAL and the OAL has 30 working days to review and approve the file. Since the emergency regulations expire on August 2, 2017, and the permanent rulemaking can only be made effective at the end of August, despite the SBE’s efforts to make substantial progress in the regular rulemaking process, these emergency regulations must be readopted if there is not to be a lapse in their effect. Any delay is due solely to the fact that the SBE meets only every other month and not due to the lack of diligence or progress with respect to the regular rulemaking process.

The following timeline illustrates the necessity for readoption of the emergency regulations in order for the CDE to meet the requirements of the Education Code.

Action* / Estimated Completion Date
SBE approve agenda items for the commencement of the emergency regulations / January 11–12, 2017
Emergency regulations become effective / February 2, 2017
SBE approve agenda items for the commencement of the permanent rulemaking process / March 8–9, 2017
SBE public comment period for permanent regulations / March 25–May 8, 2017
CAASPP Public Hearing / May 8, 2017
SBE adopts permanent regulations or approves a 15-day comment period. / July 12–13, 2017
Submit rulemaking to OAL if SBE adopts regulations (OAL has 30 working days to review file) / July 20, 2017
Emergency regulations expire / August 2, 2017
OAL Approval – Regulations effective immediately (if there is a 15-day comment period, depending on comments received – could be beginning of November 2017) / On/about August 31, 2017

*These actions represent a small, but relevant, fraction of the detail of the adoption process.

10/4/2018 8:05 PM

dsib-adad-may17item06

Attachment 2

Page 1 of 8

  • The State Board of Education has illustrated changes to the original text in the following manner: text originally proposed to be added is underlined; text proposed to be deleted is displayed in strikeout.

Title 5. EDUCATION

Division 1. California Department of Education

Chapter 2. Pupils

Subchapter 3.75. California Assessment of Student Performance and Progress (CAASPP)

Article 2. Achievement Tests and Any Primary Language Test

§ 851. Pupil Testing

(a) With the exception of pupils exempt pursuant to section 852, LEAs shall administer the achievement tests, and may administer the primary language test, to each eligible pupil as defined in section 851.5 who is enrolled in an LEA during the school's or track's selected testing period (excluding any extension period pursuant to section 855(b)(4)).

(b) The testing conducted shall be consistent with the pupil's grade of enrollment as noted in CALPADS on the first day that the pupil started testing in any component of the summative test. Testing shall be conducted within of the school's or track's available testing window pursuant to section 855.

(c) No later than start of the 2014-2015 school year, for the purposes of the CAASPP assessment system, a charter school which is not an LEA as defined in Education Code section 60603(o) shall test with, dependent on, the LEA that granted the charter or was designated the oversight agency by the State Board of Education (SBE).

(d) LEAs shall make arrangements for the testing of all eligible pupils in alternative education programs or programs conducted off campus, including, but not limited to, non-classroom based programs, continuation schools, independent study, community day schools, county community schools, juvenile court schools, or NPSs.

(e) No test may be administered in a home or hospital except by a test administrator or test examiner. No test shall be administered to a pupil by the parent, guardian, or sibling of that pupil. This subdivision does not prevent classroom aides from assisting in the administration of the test under the supervision of a test administrator or test examiner, provided that the classroom aide does not assist his or her own child, and that the classroom aide signs a CAASPP Test Security Affidavit.

Note: Authority cited: Sections 33031, 60605 and 60640, Education Code. Reference: Sections 47651, 48645.1, 60603, 60605 and 60640, Education Code.

§ 853.5. Use of Universal Tools, Designated Supports, and Accommodations

(a) All pupils shall be permitted the following embedded universal tools on the CAASPP achievement tests for ELA (including the components of reading, writing, and listening) and mathematics as specified below:

(1) breaks for reading, writing, listening, and mathematics;

(2) calculator for specific mathematics items only in grades 6 through 8 and 11;

(3) digital notepad for reading, writing, listening, and mathematics;

(4) English dictionary for writing (ELA-performance task - full write not short paragraph responses);

(5) English glossary for reading, writing, listening, and mathematics;

(6) expandable passages for reading, writing, listening, and mathematics;

(7) global notes for writing (ELA-performance task - full write not short paragraph responses);

(8) highlighter for reading, writing, listening, and mathematics;

(9) keyboard navigation for reading, writing, listening, and mathematics;

(10) mark for review for reading, writing, listening, and mathematics;

(11) mathematics tools (i.e., embedded ruler and embedded protractor) for specific mathematics items;

(12) spell check for specific writing items;

(13) strikethrough for reading, writing, listening, and mathematics;

(14) writing tools for specific pupil generated responses; or

(15) zoom for reading, writing, listening, and mathematics.

(b) All pupils shall be permitted the following non-embedded universal tools on the CAASPP tests for ELA (including the components of reading, writing, and listening), mathematics, science, and primary language as specified below:

(1) breaks;

(2) English dictionary for ELA performance task - full write not short paragraph responses;

(3) scratch paper;

(4) thesaurus for ELA performance task - full write not short paragraph responses;

(5) color overlay for science and primary language test;

(c) All pupils shall be permitted the following embedded designated supports when determined for use by an educator or a team of educators (with parent/guardian and pupil input as appropriate) or specified in the pupil's IEP or Section 504 Plan on the CAASPP achievement tests for ELA (including the components of reading, writing, and listening) and mathematics as specified below:

(1) color contrast for reading, writing, listening, and mathematics;

(2) masking for reading, writing, listening, and mathematics;

(3) text-to-speech for writing, listening, mathematics, and reading items but not reading passages;

(4) translations (glossary) for mathematics;